Everts v. Jorgensen

• Decision Date: 12 December 1939
• Docket Number: 45018.
• Citation: 289 N.W. 11,227 Iowa 818
• Parties: EVERTS v. JORGENSEN et al.
• Court: Iowa Supreme Court

289 N.W. 11

227 Iowa 818

EVERTS v. JORGENSEN et al.

No. 45018.

Supreme Court of Iowa.

December 12, 1939

Appeal from District Court Pottawattamie County; Charles Roe, Judge.

Action to recover under the Workmen's Compensation Act (Code 1935, § 1361 et seq.) The Industrial Commissioner awarded compensation, which award was affirmed by the district court. Defendants have appealed.

Affirmed.

MITCHELL and MILLER, JJ., dissenting.

If evidence supports finding of fact made by Industrial Commissioner, court cannot determine that commissioner acted in excess of his powers even though the court in trying the facts in the first instance might reach a different conclusion.

Miller, Huebner & Miller, of Des Moines, for appellants.

J. A Williams, of Council Bluffs, for appellee.

HAMILTON Justice.

The claimant, Ted G. Everts, and Wayne Goetz were employed by Amelia Jorgensen, who was operating the Kiel Hotel in Council Bluffs, Iowa. Everts commenced work in August, 1934. Sometime thereafter, Goetz was also employed. They each served in the capacity of clerk. Everts had the shift from twelve, noon, to twelve, midnight, and Goetz from twelve, midnight, to twelve, noon. There was a beer parlor adjacent to the hotel lobby in the same building. Mrs. Jorgensen took over the operation of this beer parlor, July 1, 1936, and put Goetz in charge as clerk or bartender. He held this position until 1 o'clock, A. M., September 24, 1936, when he was discharged by Mrs. Jorgensen. At about the same time, she discharged a girl by the name of Faye. The reason given was because " he (Goetz) was too familiar with the help and everyone in there." Mrs. Jorgensen testified: " I talked to Wayne for about four days. He would not listen to reason so I thought it was time for him to go. * * * I did not discuss Goetz's discharge with Everts and he never discussed it with me. Everts was not around when I fired Wayne Goetz nor when I fired the girl, Faye."

About noon of the same day he was discharged, Goetz was in the beer parlor. A liquor salesman came through the hotel and went into the beer parlor. Everts, whose job it was to check up on the liquor supply, thinking that the salesman might attempt to sell wine to Goetz, who had at different times bought liquor, followed the salesman into the parlor. There are two steps from the hotel lobby into the beer parlor and Everts stopped on these steps or on the landing. He noticed the wine salesman was in the act of leaving the beer parlor. Goetz and Bess Reed, who was hostess in the beer parlor, wanted to dance. She asked Everts for a nickel to put in the Victrola and Everts did not have a nickel, whereupon Goetz furnished the nickel and they danced to the music for three or four minutes, during which time Everts stood watching them. When they finished the dance, the Reed girl started up towards the bar and Goetz started towards the lobby. As he passed Everts, Bess Reed testified that Goetz: " Just grabbed Everts over the back of the neck and threw him off the steps and down from the steps. I saw that his feet or body flew through the air as he went down on the floor. * * * he threw him ten or fifteen feet. I saw him strike on his head and shoulders on the tile floor. Then Everts tried to get up and when he tried to get up Goetz hit him or kicked him back down. Then I interfered."

While they were dancing, there was not much said. Goetz made some remark about the fast music and Bess Reed said she was talking and laughing; that Goetz did not appear to be intoxicated or drunk. Neither Everts or Bess Reed knew that Goetz had been fired or discharged. He did not say anything about being fired or about the girl being discharged. Bess Reed testified, in substance, that Goetz was very quick tempered, but there was not anything happened to arouse his temper; that Everts was just standing there and Goetz walked toward Everts and grabbed him around the neck; that she heard no cussing; and that they were not merely " scuffling," but " he was really going after Everts, kicking him and all of that." She said she did not know of any reason why the assault was made.

Everts' testimony was to the same effect. Everts had worked at the hotel longer than Goetz and, because of this, he was given superior authority to Goetz and had a right to tell Goetz what to do and what not to do, when Mrs. Jorgensen was not there. He said he had absolutely nothing to do with the discharge of Goetz; that he had not advised Mrs. Jorgensen to fire him; that he had nothing to do with the discharge of the lady; that he never had any trouble with Goetz; and that, during all the time they worked there together, they never had an argument. Everts further testified that: " While Goetz was beating me, I would not say that he called me any foul names or anything. I never heard him express himself as being sorry for anything he did. There was nothing happened there that I observed that in my opinion would cause a quick-tempered man to fly into a rage. While he was assaulting me, to my knowledge, he did not say anything."

Goetz left the place and disappeared and had not been located at the time of the trial.

The entire case turns on the construction to be given to subparagraph (b) of paragraph (5) of Section 1421 of the 1935 Code, which provides:

" The words ‘ injury’ or ‘ personal injury’ shall be construed as follows:

a. * * *

b. They shall not include injury caused by the wilful act of a third person directed against an employee for reasons personal to such employee, or because of his employment."

As we understand appellants' contention, the decision of this case turns on the narrow point of on whom rested the burden of proof of the exception contained in the statute above quoted. The argument is that there is no evidence whatever in the record that the assault was not directed against the claimant for reasons personal to him or because of his employment and, in the absence of such evidence, the burden resting on the claimant, to prove the negative or exception, claimant must fail.

We take it to be the general rule that the workman or employee is entitled to compensation for injuries received which arose out of and in the course of his employment. His necessary burden or affirmative showing must, then, be to prove himself to be a workman or employee, within the meaning of the statute, and that he received an injury and that such injury arose out of and in the course of his employment.

Appellants do not seriously contend that there can be any doubt under the interpretation placed upon the Act by this court that the injury received " arose out of" and " in the course of" the employment. These terms have been many times considered by this court in our prior decisions and it would serve no useful purpose to again review them and we decline to do so. References may be had to Enfield v. Certain-Teed Prod. Co., 211 Iowa 1004, 233 N.W. 141; Walker v. Speeder Mach. Corp., 213 Iowa 1134, 240 N.W. 725, and cases therein cited for a full discussion of the matter.

There are certain specific exceptions of injuries which are not compensable. These exceptions are found in the statute. One of them is contained in subpar. (b) of Par. (5) of sec. 1421, heretofore quoted. Two others are found in sec. 1376 of the 1935 Code, which reads:

" No compensation under this chapter shall be allowed for an injury caused:

1. By the employee's wilful intent to injure himself or to wilfully injure another.

2. When intoxication of the employee was the proximate cause of the injury."

The rule propounded by appellants would require every claimant, in order to recover, to negative these exceptions by affirmative proof that his injury does not fall within one or more of the exceptions. We think this contention is contrary to the generally accepted rule that he who relies upon an exception to a general rule has the burden of establishing the facts which bring the matter within the exception. 20 Am.Jur., par. 142, p. 148 states the rule as follows: " The burden rests upon the party who, as a basis of his claim or defense, asserts that he is within an exception. * * *." (Citing a long list of cases.)

We do not find that this court has ever had occasion to consider or make application of the rule in connection with the exception contained in the above statute. We have applied the rule many times in cases based on insurance policies containing similar exceptions. In Jones v. Accident Ass'n, 92 Iowa 652, 61 N.W. 485, the policy contained the following: " The insurance under this contract shall not extend to or cover * * * accidental injuries or death resulting from or caused, directly or indirectly, wholly, or in part, by * * * fighting; * * *." (Italics ours.)

It was held that these exceptions were matters of defense, available to the defendant; but, not constituting a part of the plaintiff's case, the burden did not rest upon him to either plead or prove the absence of them, in the first instance. In Follis v. Accident Ass'n, 94 Iowa 435, 62 N.W. 807, 808, 28 L.R.A. 78, 58 Am.St.Rep. 408, the policy contained similar exceptions, one of them was " exposure to unnecessary danger." It was held that the burden was on the defendant to show that the deceased received his injuries while or because of his voluntary exposure to unnecessary danger. In Allen v. Travelers' Ass'n, 163 Iowa 217, 143 N.W. 574, 575, 48 L.R.A.N.S., 600, the policy contained the following exception: " This association shall not be liable * * * [for] intentional injuries causing death or disability inflicted by the member or any other person upon him." (Italics ours.)

This proviso was pleaded by the defendant as an affirmative defense and we said:

" But the defendant in this case pleaded this

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